October 25, 2010

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The Log Cabin Republicans asked a federal appeals court on Monday not to extend a temporary stay of a district court judge's ruling imposing a worldwide ban on the military's enforcement of the "don't ask, don't tell" policy for gay service members.

In its brief, accessible here, the gay GOP group also makes the surprising claim that President Barack Obama agrees with U.S. District Court Judge Virginia Phillips's decision finding "don't ask" unconstitutional. "The president agrees with the district court's decision," the LCR brief says in a footnote, citing comments the president has made about the issue on his Twitter feed and in a televised town hall meeting earlier this month.

However, Obama did not explicitly say in either of those comments that he believes "don't ask" is unconstitutional. Reporters have been pressing the White House for an answer to that question for weeks, with no success. The Justice Department, which answers to Obama, is the party which is asking the U.S. Court of Appeals for the 9th Circuit to continue the stay throughout the appeal, which is almost certain to take months and could last for years — leaving the current policy in effect throughout that time unless changed by Congress or the administration.

"As far as I know, President Obama has not claimed that the law is unconstitutional, and it would be inappropriate if he did. His personal opinion on a matter of policy is irrelevant for purposes of this litigation," a supporter of the current law, Elaine Donnelly of the Center for Military Readiness, said in response to a query from POLITICO. "He is the commander in chief and should not break faith with the troops he leads just to accommodate a minority of a minority, or to energize his political base one week before the election."

Another notable passage in the Log Cabin brief:

The district court arrived at its permanent injunction after careful analysis at every stage of this yearslong litigation. Throughout its six-year history, the government had multiple opportunities to introduce evidence that DADT actually furthered unit cohesion, morale, good order and discipline, and military readiness. It never did so. And for six years, the government had the opportunity to prepare for the eventuality that it may lose this trial. It never did. Based on the record presented at trial, the district court had no choice but to find in favor of Log Cabin.

Jessie is correct. The Center for Military Readiness has always supported the law that Congress actually passed, Section 654, Title 10, USC, not the administrative policy known as DADT. Congress rejected the DADT concept as unworkable, but Bill Clinton imposed it on the military anyway in the form of administrative regulations that should have been dropped long ago. The issue now is whether the armed forces should be burdened with an LGBT (lesbian, gay, bisexual, transgender) law or policy, with "zero tolerance" of dissent. More information is available at www.militaryculturecoalition.com.
Elaine Donnelly, President, CMR

Posted By: Jessie is correct. The Center for Military Readiness has always supported the law that Congress act | October 26, 2010 at 12:09 PM

Why is Elaine Donnelly the go-to person for every single quote on DADT? She is an anti-gay lunatic. At the very least, Politico owes its readers - not all of whom may be following the DADT story so closely - an explanation about what the "Center for Military Readiness" is. It's a whackjob right-wing fringe group who opposes not only gays in the military but also WOMEN in the military.
She is hardly an expert on whether or not a President may offer his opinion on whether or not a law is unconstitutional. And, she is entirely wrong, anyway. A President certainly CAN have, and argue, this view. And the DOJ acts in court at the direction of the President. Her quote implies that the court process is somehow detached from the President and that couldn't be further from the truth.
Terrible reporting from Politico, for not identifying Donnelly's angle, for not calling out the mistake in her quote, and for the knee-jerk reaction of going to her for a quote every time.

Q: "If the President believes that DADT is unconstitutional, isn't he violating his oath to protect and defend the Constitution by defending the unconstitutional policy in federal court?"
A: To the contrary. As Chief Executive he has a duty to take care that the laws are faithfully executed. Unless there is _no_ reasonable basis for defending duly enacted statutes (and DOJ believes there is such a basis here), the President must defend the law. Refusal to defend laws is an exceedingly rare occurrence, as it should be lest personal political pandering be allowed to overrule the rule of law.